10 Fla. L. Weekly Supp. 1043c
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Rule 1.390(a) and (c) requires payment of expert fee for deposition testimony of party or non-party treating physician with respect to medical treatment rendered in PIP suit
DR. BRUCE BRYNES (Lois Kwederas), Plaintiff, v. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-3446 COCE (53), General Civil Division. September 12, 2003. William W. Herring, Judge. Counsel: Robert G. Nichols, Nichols, Williams & Julian, Fort Lauderdale, for Plaintiff. Drew Stoller, Bernstein & Chackman, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITION FEES
THIS CAUSE, coming on to be heard from the Plaintiff’s Motion for Protective Order, and the Court having reviewed the motion and heard argument of Counsel for the respective parties, it is, therefore,
ORDERED AND ADJUDGED that the Plaintiff’s Motion for a Protective Order is hereby granted as follows: The Defendant shall pay a reasonable expert fee to Dr. Bruce Brynes as compensation if his deposition is taken in this case. The parties and Dr. Brynes shall coordinate the deposition to a mutually agreeable date and time.
The Court makes the following findings of fact. This case involves a PIP suit by the treating physician, Dr. Bruce Brynes, based upon an assignment of benefits obtained from the insured/patient. The Defendant served notice of a Deposition Duces Tecum of Dr. Bruce Brynes, which required him to bring various documents, including:
“Your ENTIRE PATIENT FILE for Lois Kwederas including but not limited to medical reports, records, charts, notes, x-rays, x-ray reports, or any diagnostic reports, films such as scans, etc., . . .prescriptions. Your response should include your entire file with regard to this patient for any care or treatment rendered, this patient either prior to or subsequent to the automotive accident of 6/2/02, and is in no way limited to services rendered only for this accident.”
The deposition of the insured/patient, Lois Kwederas, included inquiry of medical treatment from Dr. Brynes both before and after the automotive accident of 6/2/02. Lastly, Defense Counsel stated during the hearing that the deposition of Dr. Brynes would include questions regarding the reasonableness and necessity the doctor’s medical treatment of the patient/insured both before and after the accident date. Thus, the deposition of Dr. Bruce Brynes will clearly involve question that require the doctor to render an expert opinion as to the reasonableness and necessity of the medical treatment rendered, both before and after the accident in this case.
FRCP 1.390 governs Depositions of Expert Witnesses. FRCP 1.390(a) defines an “expert witness” as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.” The Court finds that Dr. Bruce Brynes fits within this definition of an “expert witness”.
FRCP 1.390(c) requires that “an expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” Based upon a plain reading of the rule, Dr. Brynes, having been found to fit within the definition of an “expert witness” is entitled to a fee for a deposition which will require the rendering of an expert opinion.
This Court previously ruled in M.M.T. Services, Inc. (Raymond Becker) v. Allstate Indemnity Company, 10 Fla. L. Weekly Supp. 651a, that a non-party treating physician is entitled to an expert fee under FRCP 1.390(c). The Court now finds nothing in FRCP 1.390(a) that excludes party treating physician, from the definition of an expert or skilled witness, or in FRCP 1.390(c) that excludes such physicians from the requirement of receiving an expert fee for a deposition. The Court finds the Legislature provided a clear, detailed definition of “expert witnesses” to be compensated, and was conspicuously silent as to whether “treating physicians” were to be treated differently. Thus, this Court holds that FRCP 1.390(a) and (c) require the payment of an expert fee for the deposition of a party or non-party treating physician with respect to medical treatment rendered to the patient/insured in a PIP suit.
* * *
